In March of this year, the Supreme Court in Carolyn Margaret Hickin v Robyn Patricia Carroll & Ors (No2)  NSWSC 1059, upheld the validity of conditional gifts in a will that required the children of the deceased to adopt a particular religion prior to becoming entitled to their inheritance. Mr Carroll (the deceased testator) used his will to make conditional gifts to his children subject to them firstly attending his funeral, and secondly being baptised into the Roman Catholic Church within three months of his death. Mr Carroll’s children are practising Jehovah’s Witnesses. Whilst alive, their father had strongly disapproved of their choice of religion. In his final and perhaps most dramatic expression of disapproval, Mr Carroll wielded the weapon of testamentary freedom to tempt his children into renouncing their Jehovah’s Witness faith.
Is the law stuck in the 1940s?
The Court asked itself two central questions:
- Are testamentary conditions in restraint of religion now per se invalid as a matter of public policy ?, and
- If such conditions are not per se invalid, has there developed a new head of public policy that should give precedence over the freedom of testamentary disposition?
Justice Kunc somewhat begrudgingly answered in the negative on both counts. Bound by the authority of the High Court of Australia in the case of Cuming  HCA 32 Kunc J considered himself obliged to find that although testamentary conditions imposing restraints on religion are not palatable in the modern social context, the conditions themselves are not invalid on the basis of public policy unless they produce either of the following consequences:
- an interference with the parental right to bring up a child in a particular faith, or
- an infringement upon the law’s policy to preserve and maintain marriage.
The Court was keen to emphasise that testamentary conditions that place restraints on religion “do not impinge on whatever right to the free exercise of their religion the law now accords to the children”. The testamentary gifts do not compel the potential beneficiaries to do anything. Ultimately, it is the choice of the beneficiaries whether they shall comply with the testamentary condition.
Is change in the air?
Although lawyers and judges alike are anxious to see the issue debated before the High Court, the current state of law dictates that “assuming it is not uncertain or impossible, … a testamentary gift which is conditional upon the donee adhering to, embracing or abjuring certain religious beliefs” will be valid.